Universal: EFF SLAPPed us with dancing toddler DMCA lawsuit

The EFF sued Universal after the music label filed a DMCA takedown notice on a …

California is one of the states with its own anti-SLAPP law, designed to prevent the powerful from filing a Strategic Lawsuit Against Public Participation—in other words, to stop them from suing critics. The anti-SLAPP statute allows critics to get such cases tossed out of court quickly, and it allows the target of the lawsuit to sue in return. The law is generally invoked by corporate critics, but in the last year we've seen it used several times by the major media companies themselves, which claim they are being prevented from exercising their legitimate public rights. Universal, in fact, is currently arguing that the EFF—a big supporter of anti-SLAPP laws—is itself running afoul of those laws. In fact, Universal is actually the victim here of "an ongoing campaign by the Electronic Frontier Foundation to deter copyright holders from protecting their rights."

Last summer, Universal found itself hauled into court by the EFF after the music company filed a DMCA takedown notice with YouTube over a 29-second video clip of a toddler dancing in his parents' kitchen. The clip was targeted because, as the toddler shakes his groove thang, Prince's "Let's Go Crazy" plays on a boombox in the background. Stephanie Lenz, the baby's mother, sued Universal with the help of the EFF on the grounds that the company was filing false DMCA takedown notices and that her video was a "self-evident" fair use of the song.

Already SLAPPing major music labels

In the court case that followed, Universal mounted an aggressive defense, saying that the EFF was more interested in "attention-grabbing press releases" that further its own "philosophical objections" than it was in filing legitimate lawsuits. In fact, not only was the claim of "self-evident" fair use an "oxymoronic" one, but the EFF is itself attempting to SLAPP Universal.

First, on the fair use question, the label insists that there is no such thing as a self-evident fair use claim and that this could not therefore be used to attack the company's DMCA takedown notice. "More fundamentally, Plaintiff's reliance on a supposed 'self-evident' fair use defense also fails because there is no such thing," wrote Universal's lawyer. "It is a concept that can be found only in the wishful thinking of the EFF. It is not found in any statute or case law. Whether a use does or does not amount to a fair use is never 'self-evident,' but is reached only after a defendant first affirmatively pleads it and then proves it after an intense equitable balancing of multiple factors."

Universal also says that one of the three claims against it actually runs counter to the anti-SLAPP statute in California because the EFF is interfering with "free speech" contained in Universal's takedown note to YouTube. In effect, the EFF is trying to silence such legitimate speech. Universal points to the fact that Lenz and EFF attorneys all made numerous media appearances after the case was filed, and Lenz also wrote about it on her blog. Oh, the humanity!

If that seems like a curious argument to you, you're in a good company. The federal judge in the case ruled this month that "it is not clear that Universal's free speech rights were violated." He also said that Universal's speech rights didn't deserve SLAPP protection "simply because Lenz appeared on television to discuss her case and wrote about her case on her blog."

Companies like Universal hardly seem in danger of having their rights tramped by a toddler-taping mom who appears on TV, but the company isn't the only one to claim that the EFF is attempting to "SLAPP it down." Verizon made the same case in May 2007 when the EFF and ACLU sued the company to learn more about any phone records it turned over to the US National Security Agency for analysis. In that case, Verizon claimed that the suit was a SLAPP designed to keep it from exercising its First Amendment right to turn over customer calling information to government security services.

"Communicating facts to the government is protected petitioning activity," said Verizon at the time.

While the EFF did win on the SLAPP issue in the Universal case, the judge dismissed the case without prejudice; a few days ago, the EFF did file an amended complaint that addresses the judge's concerns (that aspect of the case has just been well-covered by Declan McCullagh at CNET). And the wheels of justice grind slowly on.

Further reading:

The court documents are all available via Pacer, case 5:07-cv-03783-JF